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LITERARY PANORAMA,

AND

National Register:

For OCTOBER, 1816.

NATIONAL AND PARLIAMENTARY NOTICES, (British and Foreign,)

PROSPECTIVE AND RETROSPECTIVE.

JURY COURT IN SCOTLAND.

THE FIRST, SECOND, AND THIRD

REPORTS

OF THE LORD PRESIDENT OF THE
COURT OF SESSION,

THE LORD JUSTICE CLERK,

AND THE

are by no means in a state to form a judgment on the accurate quantum of remuneration due to himself, or to determine the precise amount of punishment due to the criminality of which he complains. He suffers; he therefore, resents; his resentment incapacitates him

LORD CHIEF COMMISSIONER OF THE from equalizing the guilt and the pe

JURY COURT.

nalty and of two penalties. one lighter, the other heavier, he would chuse the

Ordered by the House of Commons to le Printed, most severe, from the natural impulse

27th March, 1816.

of his feelings, although correct equity might declare itself satisfied with the more moderate.

In this stage of things Society steps in, and transfers to others of the commuuity the right and the duty of pronouncing on the case. ferent; they are not inflamed by pasThey are indifsion, nor provoked by sense of injury, nor beyond controul of cool and unbiassed judgment. The sovereign power of the state appoints Judges, the law appoints the penalty, and (among ourselves) this is inflicted, in proportion to what aggravations, or abatements, have distinguished the case.

THE distinguishing talent of Man above the brutes is, that intellectual faculty of discernment which qualifies him for social life; that Reason, the exercise of which exalts him in the rank of creatures, and marks him as Supreme of all terrestrials. That this should ever be betrayed into error, or be overcome by violence, is extremely to be regretted; yet so it is; the Passions of humanity act in opposition to reason, and too often do violence to a power, to which they should be altogether subservient, as their established guide and governor. Insomuch that as Reason qualifies a man The law is the same for a whole kingfor forming one of a number associated dom; and the Judges who are to admi in general community, so Passion disqua-nister it-are the same; but, from the lifies him, and counteracts the advan- nature of things, they must be strangers tages attendant on reason. If passion be- to the locality; and strangers cannot comes unruly, and discovers itself in possibly be informed on a variety of miovert acts, the community suffers in its nute particulars, which, by their appli combined interest, or some individual suf-cation, vary the force of the proofs fers in his particular interest. To entrust the individual, thus suffering, to do himself justice, is to confide a power to his passions, in turn; his sense of indignity, his self esteem, his revenge, VOL. V. No. 25, Lit. Pan. N. S. Oct. 1.

brought in support, or refutation of a charge. Strangers appear at one time; but, they may or may not appear again; or, after an interval so long, that the memory of misconduct may be weaken

B

ed, if not obliterated. Strangers suffer nothing therefore, by loss of confidence, or of character, in the neighbourhood; for the neighbourhood to them is nothing.

he is now a Judge, for the time, may, in their turn, and perhaps speedily, be Judges over him his property, or his life, his reputation, or his houour, may be in their hands, as their's is now in his.

We are to consider the principle and

The principles of English Jurisprudence are built on a totally different basis; with them the neighbour-practice of Juries, as originating among hood is every thing; and they sup- people which boasted of but limited acpose, that a man to whom is committed quaintance with letters. Long pleadings on any occasion, the office of pronounc- were almost unknown among them: the ing a verdict, would not only bring with testimony of their own eyes, or the dehim native integrity and honesty of clarations of witnesses of unimpeachmind, but also a dread of sanctioning able character, directed their opinion. a corrupt verdict, lest thereafter his They passed their verdict on FACTS; former friends should stand aloof from and nothing less than rational conviction his company, lest those among whom swayed them. They could not read; he resides, with whom he must of they could not write; but they could necessity spend his future life, should hear, mark, understand, consider, and not only shun his intercourse, but should commune with each other, till they had regard him as " a man forbid," a man, agreed on that form in which they who, having perjured himself on such would declare the truth. an occasion, and having injured or ruined, such a family,-may be pointed at with the "slow unmoving finger" of cantion and discrimination, hinting what is not spoken, and expressing by a sign, more than a lengthened accusation in words. Nothing can support this, but the consciousness of having faithfully and uprightly discharged a duty imposed by circumstances, and by his country if conscience is proof, in is recollection, against such inuendoes, the man may yet be happy; if the memory feels that the suspicion is but too true, farewell peace of mind, together with reputation and respect.

The order anciently established in the arrangement of Juries was truly admirable: slight offences, were tried by a Jury of the neighbourhood, or the hundred, in a Hundred Court; more considerable, in an assembly of several hundreds, or the county; and from hence an appeal lay to the king himself.

stone) the policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature, as there are manors and townships in the kingdom, wherein injuries were redressed in an easy and expeditious manner by the suffrage of neighbours and friends. These courts, however, communicated with others of a larger jurisdiction, and those again with others of a still greater power, ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as by reason of their weight and difficulty demanded a

"Thus we may see (says Judge Black

It was among the most ridiculous perversities of the French Revolutionists, to give the name of Jury to a number of men who occupied that office constantly, never changing, never receiving their reward, whether approbation, or contempt, from their fellow citizens; but, forming a corps, with all the obduracy of habituated virulence; and this they called a Jury. Whereas, an Eng-more solemn discussion:-"the source of lish Jury is a number of men taken from among the mass of citizens, and returning instantly, after duty done, into that mass again. Each of them feels the full conviction, that those over whom

* See an extract in Lit. Pau. Vol. XL

p. 405, in which the atrocities committed by a French Jury are noticed, and partly described.

justice thus flowing in large streams from the king as the fountain to his superior courts of record, and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. These inferior courts, at least the name and form of them, still continue in our legal constitu tion; but as the superior courts of record have in practice obtained a concurrent ori

from the northern extremity of the island to the House of Peers in London, was any thing, rather that that good old maxim of our antient jurisprudence.

ginal jurisdiction with them, and as there | principle, which directs that justice be is besides a power of removing plaints or brought home to every man's door, was actions thither from all the inferior juris-violated, in no trivial degree: an appeal dictions; upon these accounts (among others) it has happened that these petty tribunals have fallen into decay, and almost into oblivion; whether for the better or the worse, may be matter of some speculation, when we consider, on the one band, the expeuse and delay, and on the other, the more upright and impartial decision that follows this change of jurisdiction."

We doubt whether these last sentences of this learned writer, are precisely those demanded by the occasion. We should rather have alluded to the complex nature of modern property, and to the infinitely varied shapes it assumes; so different from the more simple and practical questions which, al ne could engage the enquiries of a Jury when agriculture was the employment generally followed, together with a few of the more necessary arts of life:-but, little trade, and very little commerce. that as it might, the right of appeal from court to court, is certainly now very expensive, and whoever carries a question from its first rise to the dernier resurt, had need, in the present day, bave his pockets well filled with guineas, or his pocket-book well lined with bank notes.

Be

By turning to our tenth volume, page 210, the reader will recollect, that the number of Scotch appeals before the Lords, was two hundred and two; while those for England were only fifteen; and those for Ireland, thirty five. The next page informs him, that many of these appeals were lodged, merely for purposes of delay, and, of one, in particular, the solicitor reports, that after waiting seven years, he took it away, at the last moment, on paying How far this was a specimen the costs. of Scotch conciliation, we dare not pronounce; but it could not fail of striking the House of Lords, as it struck us, of demanding reformation, with urgency.

Now, the trial by Jury not having been established in Scotland, it was worth trying the experiment, whether, under the sanction of that institution, the suitors to the Courts might not obtain satisfaction at home, and not only their expences be lessened, their time saved, their animosites diminished, and their bickerings more speedily termi

House be relieved from a great part of the weight under which it groaned, and the odium of delayed justice be removed from the Highest Court of Administration in the kingdom.

After much discussion, and consulta

But, the disposition for carrying ap-nated, but also, the table of the Upper peals to the utmost, has been found by experience to prevail most in Scotland, a country, where the trial by Jury had not been established. It was not occasioned by the partiality, or corruption of the Judges, but by the perseve- tion public and private, with the Scotch rance of the litigating parties; it was not seldom confirmed by the calculation Judges, Parliament gave its sanction to of how long time might elapse, be- the attempt. An Act was passed; and fore a suit could be determined in the the Reports before us, are the history last instance, the House of Lords,-nor of what has occurred in consequence. was it uncommon for a suit when set The first Report is chiefly employed down for immediate hearing, and on the narrating the forms adopted in espoint of coming before the House, to be closed on the terms of the last judgment; -all the delay that could be obtained, having been obtained, to the very latest

moment.

It must be confessed, that, when the dernier resort of Scotland, was, by the Union of the two Crowns, and the two Kingdoms, removed to England, the

tablishing this novelty, the Jury Court in Scotland. We afterwards, come to the consideration of seven causes, most of which would still have been in continuation, had not the Jury closed them, by a verdict.

We take the first cause as an instance: it was a question of nuisance, for erecting a Steam Engine, in a place

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